Passing Off or Switch Selling - Supplying a brand other than the one that has been requested.

 To comply with consumer protection law, when an alternative product or brand is to be sold to the one requested, the consumer must be notified and given the choice of accepting the alternative offered.  If this does not happen and the consumer is served an alternative, without his or her knowledge, then this is known as passing off, which is illegal.

The act constitutes an actionable misrepresentation under the law of passing off  (passing off constitutes a number of common law principals / case law), also potentially the Trade Descriptions Act 1968 section 1 - the application of a false trade description and the Trade Marks Act 1994, section 10 – Infringing a registered trademark.

It is therefore important that staff are aware of this and are instructed that if the brand ordered is not stocked they must notify the customer before serving an alternative.

Further examples include:

1.   When drinks are served from speed rails it is an offence to serve a alternative spirit when a brand, such as Smirnoff / Bacardi / Gordon’s, is displayed on the bar or back bar.  The customer “thinks” he is getting something that he is not.

If the bar advertises generic spirits e.g. vodka then it can sell any brand, if the advertising / displays declare a brand then it is that brand that must be sold.

2.   The same will apply for double banking, where a row of alternative spirits sits behind a row of the premium branded spirits on optic.

Invoking The Law

Any consumer who suspects that they have been passed off with a product other than the one requested or switch sold can complain to Trading Standards and each case will be investigated. If a brand owner has evidence that this is happening on a regular basis then a Civil Action can be undertaken.